H.R. 1233 — what changed

“2208. Claims of constitutionally based privilege against disclosure

“(a)

“(1) When the Archivist determines under this chapter to make available to the public any Presidential record that has not previously been made available to the public, the Archivist shall—

“(A) promptly provide notice of such determination to—

“(i) the former President during whose term of office the record was created; and

“(ii) the incumbent President; and

“(B) make the notice available to the public.

“(2) The notice under paragraph (1)—

“(A) shall be in writing; and

“(B) shall include such information as may be prescribed in regulations issued by the Archivist.

“(3)

“(A) Upon the expiration of the 60-day period (excepting Saturdays, Sundays, and legal public holidays) beginning on the date the Archivist provides notice under paragraph (1)(A), the Archivist shall make available to the public the Presidential record covered by the notice, except any record (or reasonably segregable part of a record) with respect to which the Archivist receives from a former President or the incumbent President notification of a claim of constitutionally based privilege against disclosure under subsection (b).

“(B) A former President or the incumbent President may extend the period under subparagraph (A) once for not more than 30 additional days (excepting Saturdays, Sundays, and legal public holidays) by filing with the Archivist a statement that such an extension is necessary to allow an adequate review of the record.

“(C) Notwithstanding subparagraphs (A) and (B), if the 60-day period under subparagraph (A), or any extension of that period under subparagraph (B), would otherwise expire during the 6-month period after the incumbent President first takes office, then that 60-day period or extension, respectively, shall expire at the end of that 6-month period.

“(b)

“(1) For purposes of this section, the decision to assert any claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) must be made personally by a former President or the incumbent President, as applicable.

“(2) A former President or the incumbent President shall notify the Archivist, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate of a privilege claim under paragraph (1) on the same day that the claim is asserted under such paragraph.

“(c)

“(1) If a claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) is asserted under subsection (b) by a former President, the Archivist shall consult with the incumbent President, as soon as practicable during the period specified in paragraph (2)(A), to determine whether the incumbent President will uphold the claim asserted by the former President.

“(2)

“(A) Not later than the end of the 30-day period beginning on the date of which the Archivist receives notification from a former President of the assertion of a claim of constitutionally based privilege against disclosure, the Archivist shall provide notice to the former President and the public of the decision of the incumbent President under paragraph (1) regarding the claim.

“(B) If the incumbent President upholds the claim of privilege asserted by the former President, the Archivist shall not make the Presidential record (or reasonably segregable part of a record) subject to the claim publicly available unless—

“(i) the incumbent President withdraws the decision upholding the claim of privilege asserted by the former President; or

“(ii) the Archivist is otherwise directed by a final court order that is not subject to appeal.

“(C) If the incumbent President determines not to uphold the claim of privilege asserted by the former President, or fails to make the determination under paragraph (1) before the end of the period specified in subparagraph (A), the Archivist shall release the Presidential record subject to the claim at the end of the 90-day period beginning on the date on which the Archivist received notification of the claim, unless otherwise directed by a court order in an action initiated by the former President under section 2204(e) of this title or by a court order in another action in any Federal court.

“(d) The Archivist shall not make publicly available a Presidential record (or reasonably segregable part of a record) that is subject to a privilege claim asserted by the incumbent President unless—

“(1) the incumbent President withdraws the privilege claim; or

“(2) the Archivist is otherwise directed by a final court order that is not subject to appeal.

“(e) The Archivist shall adjust any otherwise applicable time period under this section as necessary to comply with the return date of any congressional subpoena, judicial subpoena, or judicial process.”

“(f) During a President’s term of office, the Archivist may maintain and preserve Presidential records on behalf of the President, including records in digital or electronic form. The President shall remain exclusively responsible for custody, control, and access to such Presidential records. The Archivist may not disclose any such records, except under direction of the President, until the conclusion of a President’s term of office, if a President serves consecutive terms upon the conclusion of the last term, or such other period provided for under section 2204 of this title.”

“(f) The Archivist shall not make available any original Presidential records to any individual claiming access to any Presidential record as a designated representative under section 2205(3) of this title if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives.”

added “2209. Disclosure requirement for official business conducted using non-official electronic messaging accounts

added “(a) In general—An officer or employee of an executive agency may not create or send a Presidential record using a non-official electronic messaging account unless such officer or employee—

added “(1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the Presidential record; or

added “(2) forwards a complete copy of the Presidential record to an official electronic messaging account of the officer or employee within five days after the original creation or transmission of the Presidential record.

added “(b) Adverse actions—The intentional violation of subsection (a) (including any rules, regulations, or other implementing guidelines), as determined by the appropriate supervisor, shall be a basis for disciplinary action in accordance with subchapter I, II, or V of chapter 75 of title 5, as the case may be.

added “(c) Definitions—In this section:

added “(1) Electronic messages—The term “electronic messages” means electronic mail and other electronic messaging systems that are used for purposes of communicating between individuals.

added “(2) Electronic messaging account—The term “electronic messaging account” means any account that sends electronic messages.

added “(3) Executive agency—The term “executive agency” has the meaning given that term in section 105 of title 5.”

“2107. Acceptance of records for historical preservation

“(a) In general—When it appears to the Archivist to be in the public interest, the Archivist may—

“(1) accept for deposit with the National Archives of the United States the records of a Federal agency, the Congress, the Architect of the Capitol, or the Supreme Court determined by the Archivist to have sufficient historical or other value to warrant their continued preservation by the United States Government;

“(2) direct and effect the transfer of records of a Federal agency determined by the Archivist to have sufficient historical or other value to warrant their continued preservation by the United States Government to the National Archives of the United States, as soon as practicable, and at a time mutually agreed upon by the Archivist and the head of that Federal agency not later than thirty years after such records were created or received by that agency, unless the head of such agency has certified in writing to the Archivist that such records must be retained in the custody of such agency for use in the conduct of the regular business of the agency;

“(3) direct and effect, with the approval of the head of the originating Federal agency, or if the existence of the agency has been terminated, with the approval of the head of that agency’s successor in function, if any, the transfer of records, deposited or approved for deposit with the National Archives of the United States to public or educational institutions or associations; title to the records to remain vested in the United States unless otherwise authorized by Congress; and

“(4) transfer materials from private sources authorized to be received by the Archivist by section 2111 of this title.

“(b) Early transfer of records—The Archivist—

changed “(1) in consultation with the head of the originating Federal agency, is authorized to accept for deposit deposita copy of the records described in subsection (a)(2) that have been in existence for less than thirty years; and

“(2) may not disclose any such records until the expiration of—

“(A) the thirty-year period described in paragraph (1);

“(B) any longer period established by the Archivist by order; or

“(C) any shorter period agreed to by the originating Federal agency.”

“2111. Material accepted for deposit

“(a) In general—When the Archivist considers it to be in the public interest the Archivist may accept for deposit—

“(1) the papers and other historical materials of a President or former President of the United States, or other official or former official of the Government, and other papers relating to and contemporary with a President or former President of the United States, subject to restrictions agreeable to the Archivist as to their use; and

“(2) recorded information (as such term is defined in section 3301(a)(2) of this title) from private sources that are appropriate for preservation by the Government as evidence of its organization, functions, policies, decisions, procedures, and transactions.

“(b) Exception—This section shall not apply in the case of any Presidential records which are subject to the provisions of chapter 22 of this title.”

“2114. Preservation of audio and visual records

“The Archivist may make and preserve audio and visual records, including motion-picture films, still photographs, and sound recordings, in analog, digital, or any other form, pertaining to and illustrative of the historical development of the United States Government and its activities, and provide for preparing, editing, titling, scoring, processing, duplicating, reproducing, exhibiting, and releasing for non-profit educational purposes, motion-picture films, still photographs, and sound recordings in the Archivist’s custody.”

“3301. Definition of records

“(a) Records defined

“(1) In general—As used in this chapter, the term records—

“(A) includes all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them; and

“(B) does not include—

“(i) library and museum material made or acquired and preserved solely for reference or exhibition purposes; or

“(ii) duplicate copies of records preserved only for convenience.

“(2) Recorded information defined—For purposes of paragraph (1), the term recorded information includes all traditional forms of records, regardless of physical form or characteristics, including information created, manipulated, communicated, or stored in digital or electronic form.

“(b) Determination of definition—The Archivist’s determination whether recorded information, regardless of whether it exists in physical, digital, or electronic form, is a record as defined in subsection (a) shall be binding on all Federal agencies.”

Title 44, United States Code, is amended—

“(d) The Archivist shall promulgate regulations requiring all Federal agencies to transfer all digital or electronic records to the National Archives of the United States in digital or electronic form to the greatest extent possible.”